United States of America v. Manuel Emilio Acevedo

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MANUEL EMILIO ACEVEDO,
Defendant - Appellant.
No. 21-5055
(D.C. No. 4:20-CV-00275-CVE-2)
(N.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
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Before TYMKOVICH, Chief Judge, HARTZ and BACHARACH, Circuit Judges.
_________________________________
Manuel Emilio Acevedo pleaded guilty to drug conspiracy and possession of
heroin with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(i),
841(a)(1), and 841(b)(1)(B)(i). He was sentenced to 120 months’ imprisonment.
Although his plea agreement contained a waiver of his appellate rights, he filed a
notice of appeal. The government has moved to enforce the appeal waiver in the plea
agreement pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)
(en banc) (per curiam).
* This panel has determined unanimously that oral argument would not
materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 14, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-5055 Document: 010110590371 Date Filed: 10/14/2021 Page: 1

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Under Hahn, we consider “(1) whether the disputed appeal falls within the
scope of the waiver of appellate rights; (2) whether the defendant knowingly and
voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” Id. at 1325.
In response to the government’s motion, Mr. Acevedo, through counsel,
concedes that he “waived the right to appeal any sentence that does not exceed the
statutory maximum, and he received a sentence that is below the statutory
maximum,” such that the appeal falls within the scope of the waiver, Resp. at 2;
that “the waiver was knowing and voluntary,” id. at 3; and that “nothing in the record
suggests the district court relied on an impermissible factor . . . or that the waiver was
otherwise unlawful,” id. Therefore, counsel concedes “that there is no viable,
non-frivolous basis for opposing the Motion.” Id. at 4.
Based on this concession and our independent review of the record, we grant
the government’s motion to enforce the appeal waiver and dismiss the appeal. This
dismissal does not affect Mr. Acevedo’s right to pursue post-conviction relief on the
grounds permitted in his plea agreement.
Entered for the Court
Per Curiam
Appellate Case: 21-5055 Document: 010110590371 Date Filed: 10/14/2021 Page: 2

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